In Re the Marriage of Misol

445 N.W.2d 411, 1989 Iowa App. LEXIS 128, 1989 WL 104629
CourtCourt of Appeals of Iowa
DecidedJune 15, 1989
Docket88-233
StatusPublished
Cited by8 cases

This text of 445 N.W.2d 411 (In Re the Marriage of Misol) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Misol, 445 N.W.2d 411, 1989 Iowa App. LEXIS 128, 1989 WL 104629 (iowactapp 1989).

Opinions

HABHAB, Judge.

Maria Misol appeals from provisions of the dissolution decree entered in the district court. She argues 1) the alimony award is inequitable, as is the amount ordered for child support; 2) Dr. Misol should be ordered to pay for the children’s college education; and 3) she should be awarded appellate attorney fees.

The parties were married for twenty-two years. They have four children: Adrian, born June 6,1966; Carmen, born December 13, 1968; Elizabeth, born November 2, 1970; and Helen, born December 18, 1976. Adrian and Carmen presently attend college. Sinesio is an orthopedic surgeon. His gross earnings in 1986 were approximately $330,000. Maria has a degree in journalism. She has not worked outside the marriage except for occasional work in political campaigns and periodic work in a lab at the University of Iowa. She has no present plans to return to the work force.

Our scope of review is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R.App.P. 14(f)(7). Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties in this case. In re [413]*413Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).

Maria argues the award made to her in the form of alimony is inadequate. She testified she requires $5,700 monthly to provide for herself and the children. The district court awarded her $3,500 monthly and $600 per month per child under the age of eighteen in child support. Two children qualified for child support at trial time. Prior to trial, Maria was receiving $4,500 per month temporary support from Sinesio.

The term “alimony” generally means an allowance for spousal support and is distinguishable from property division. Brin v. Brin, 240 Iowa 659, 651, 37 N.W.2d 261, 262 (1949). It is an allowance to the spouse in lieu of the legal obligation for support. In re Marriage of Hitchcock, 309 N.W.2d 432, 437 (Iowa 1981). It is not an absolute right. In re Marriage of Maskel, 225 N.W.2d 115, 120 (Iowa 1975). Moreover, once entered it survives the marriage. As the supreme court stated:

When the court awards alimony, however, it refuses to wipe clean the marital slate. The court determines, instead, the husband has a continuing support obligation and the lots of the parties are to this extent still bound together. The reach of that obligation may vary with the financial fates of the parties, but the obligation has been created and it survives the marriage.

In re Marriage of Carlson, 338 N.W.2d 136, 140 (Iowa 1983).

The adequacy of the alimony awarded to Maria cannot be considered in a vacuum, separate from any other considerations. Instead, we must also look to the result of the property division. “Property division and alimony must be considered together in evaluating their individual sufficiency. They are neither made nor subject to evaluation in isolation from one another.” In re Marriage of Griffin, 356 N.W.2d 606, 608 (Iowa App.1984); In re Marriage of McFarland, 239 N.W.2d 175, 179 (Iowa 1976).

The assets awarded to Maria amount to a net total in excess of $700,000. Nearly one-half of this amount is represented by a 50 percent share of Sinesio’s profit sharing trust account. As of September 14, 1987, Maria’s 50 percent share was valued at $363,328.

The remaining assets awarded to Maria represent a net total value in excess of $336,000 and included a home valued at $160,000 (with a mortgage of $29,000); household goods and paintings valued at $22,260; 800 shares of Rubbermaid stock valued at $24,000; a savings account in a Spanish bank worth $58,450; a tax exempt bond worth $26,500; two pieces of property in Spain worth $35,000; jewelry valued at more than $11,000; an automobile valued at $12,800; and two individual retirement accounts, other stock, and another automobile. Dr. Misol was awarded assets having nearly the same total value.

Wayne Stevenson, the Certified Public Accountant who performs the accounting work for the profit sharing trust, outlined several options which Maria could pursue with her one-half of the profit sharing trust account. She can immediately withdraw her entire share of the account, calculated at $373,800. After payment of taxes and a penalty for early withdrawal, she would have $205,000 left to invest, a capital sum which, if invested at 10 percent, would produce income in excess of $1,700 per month and at 9 percent would produce income of $1,537 per month.

In the alternative, she could withdraw $181,000 from the account immediately, giving her a net sum of $100,000 to invest. The remaining balance in her share of the account, according to Mr. Stevenson, would grow to approximately $1,000,000 by the time Maria reaches age fifty-nine, at which time she could make withdrawals from the account without incurring an early withdrawal penalty. Meanwhile, the net $100,-000 of her withdrawal would be available to Maria to invest for the production of additional income or to use as she sees fit. As a third option, Maria could leave her entire one-half of the account untouched. If she pursued this course, at the age of fifty-nine, according to Mr. Stevenson, she would have almost $1.9 million available [414]*414for her withdrawal without incurring penalties.

Mr. Stevenson’s tables show with the income available to Maria from alimony and child support, based on $3,500 per month alimony and $500 per child per month in child support plus $693 per month income from the stock and bonds received as part of the property settlement, but without any consideration of the impact of the profit sharing plan, Maria’s monthly income would be $5,193 ($4,469 after taxes). If she withdrew sufficient funds from the pension and profit sharing plan to give her an additional $100,000 to invest immediately, her monthly income after taxes would be $5,002. If she withdrew her entire share of the profit sharing plan immediately and invested it at 10 percent, she would receive monthly income of $6,906 before taxes, or $5,527 after taxes. Thus, by withdrawing her share of the profit sharing plan and investing it, and by combining that income with her alimony, child support, and the income from her other investable assets (but without touching any of the underlying principal), Maria could reasonably anticipate an annual income of nearly $82,878 before taxes, $66,331 after taxes.

As we stated in In re Marriage of Hayne, 334 N.W.2d 347, 351 (Iowa App.1983):

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In Re the Marriage of Misol
445 N.W.2d 411 (Court of Appeals of Iowa, 1989)

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445 N.W.2d 411, 1989 Iowa App. LEXIS 128, 1989 WL 104629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-misol-iowactapp-1989.